By Erica Johansson
This e-book evaluates the requirement for specificity as a criterion for estate rights in securities evidenced by way of digital entries made on securities debts. It compares English, US and Swedish legislation with the purpose of discovering possible solutions.
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Extra info for Property Rights in Investment Securities and the Doctrine of Specificity
98 The major advantage of the Convention is that it enables market participants to identify with certainty the law applicable to securities held with an intermediary ex ante to entering into a specific transaction. Another advantage is that it subjects all of an investor’s interests in respect of one portfolio to the law of one single jurisdiction even when the portfolio consists of securities of issuers from different jurisdictions. In comparison with the traditional approach, which often results in many different laws being applicable to the same portfolio, this is a clear advantage.
In the case of a secured transaction, does the same analysis apply to a repledge on more severe conditions, for example for a larger debt or a later maturity, as to a repledge on the same conditions? These questions are closely related to whether Art. 5 of the Financial Collateral Directive concerns outright transfers or repledges. If the right of redemption ceases to exist it is easy to argue that the transaction shall be labelled as an outright transfer as the most fundamental characteristic of a pledge – namely the right to have the property back – is missing.
Cf also Art. 5(2)(1) Financial Collateral Directive. H˚astad 152. 41 It should be pointed out that the discussion concerns property or collateral held by a person other than the owner. As long as the owner keeps the property in its possession there is no need to identify each asset. 42 Goode (2004), 56. 43 H˚ astad 152. 44 cf Sect. 3. 45 Recital 19 Financial Collateral Directive. 40 18 2 The New Order Under Art. 5(3) of the Financial Collateral Directive, the equivalent collateral transferred in discharge of an obligation shall be subject to the same security financial collateral arrangement as the original collateral.